Encroachment on state and municipal property and the removal path

The office of lawyer Ali Barakat in Baghdad sets out the path for dealing with encroachment on property belonging to the State, to Amanat Baghdad or to the municipalities. What is meant here is building or exploitation on public property without the consent of the body that owns or administers it.

Who administers State or municipal property

State property, as to its inventory, its administration and any disposition the law allows, is reviewed at the Ministry of Finance through the State Real Estate Department, including the Baghdad real-estate sections for the Rusafa and Karkh sides and the sections for the governorates. If the property lies in Baghdad on the Rusafa side, the Baghdad / Rusafa real-estate section of that Department is approached. If it lies on the Karkh side, the Baghdad / Karkh section is approached. If it lies in another governorate, the section that handles that governorate is approached, together with the Department's branch there.

Property belonging to Amanat Baghdad is reviewed with Amanat Baghdad. Property belonging to a municipality in another governorate is reviewed with the municipal directorate within whose limits the property lies. A ministry, or a body not attached to a ministry, to which the property has been allocated, or under whose administration or supervision it falls, is also approached if the register or the allocation decision shows that it administers the site.

The real estate register remains evidence of the ownership and rights recorded in it, under article 10 of Real Estate Registration Law No. 43 of 1971. If the property is registered in the name of the Ministry of Finance, Amanat Baghdad, a municipality or another department, that appears from a copy of the register or from the title deed. If the property is unregistered, or is subject to confirmation formalities, its attribution is established from the records, administrative decisions and inspection, not from possession alone.

Sale and Lease of State Property Law No. 21 of 2013 is the framework named by Investment Law No. 13 of 2006, as amended, in article 10, fifth, when excepting property allocated for investment projects from the provisions of that law. A lawful sale or lease of State property is therefore a path separate from the removal of an encroachment. The two are not to be confused, and a later lease or sale is not a substitute for first establishing who owns the property.

The path for removing an encroachment, and its effect on the register

Removal of a building or of an exploitation on property of the State, of Amanat Baghdad or of a municipality, carried out without consent, is undertaken by the body that owns the property or under whose administration or supervision it falls: the State Real Estate Department at the Ministry of Finance, Amanat Baghdad, the municipal directorate, or the ministry to which the property was allocated. The path is administrative in nature: inspection of the site, identification of the boundaries of the public property, a demand that the encroacher remove the encroachment, and removal of what was erected, at the encroacher's expense, if it is not removed, together with any equivalent rent for the period of occupation and compensation for damage, as that body decides within its authority.

The detailed steps for requiring removal, and for carrying it out, are fixed by the decision of the State Real Estate Department, Amanat Baghdad, the municipal directorate or the ministry that administers the property, according to who owns the site, and within that body's authority. Possession of State or municipal property does not, by the mere passage of time, confer ownership in the way that may be examined for unregistered private property, because public property is administered, inventoried and disposed of under its own administrative and statutory path. Acquisitive possession of property is the subject of the page Acquisitive possession of property, and that path is not this one.

If removal of the encroachment requires an entry in the real estate register — a note, a correction, or the removal of works noted against the property — the Real Estate Registration Department in whose area of work the property lies is approached, on the basis of the decision of the owning or administering body and of the inspection, under the Real Estate Registration Law rules on recording the property's description and appurtenances. Correction of the property's kind when works disappear, or when buildings are erected that change its use, is addressed in articles 279 and 280, and on the page Changing the land category from agricultural to residential or commercial.

Distinguishing removal from expropriation for public benefit

Expropriation for public benefit proceeds under Appropriation Law No. 12 of 1981, on an application to the Court of First Instance of the place where the property lies, with an assessment by the Valuation Board, then deposit of the compensation and registration of the property in the name of the expropriating body. That is a path for taking private property, or a real right over it, in return for compensation. It is the subject of the page Expropriation for public benefit and compensation.

Removal of an encroachment on property that already belongs to the State, to Amanat Baghdad or to a municipality is not an expropriation of the encroacher's property, and it is not compensation for the taking of a title recorded in the encroacher's name, so long as the property encroached upon is not owned by that person. Confusing the two paths leads to a claim for compensation that has no place, or to a failure to approach the body that administers the public property.

If a person said to have encroached disputes the attribution of the property, the fact of the encroachment or the boundaries of the site, the dispute may be brought before the Court of First Instance on title or possession, in the light of the register and of the administrative decisions and inspection that are produced. That does not replace a first approach to the owning or administering body, and it does not turn removal into expropriation.

Legal basis and sources

1. Real Estate Registration Law No. 43 of 1971 (Iraqi Official Gazette, issue 1995 of 10/5/1971)
2. Investment Law No. 13 of 2006, as amended (Iraqi Official Gazette, issue 4031 of 17/1/2007), article 10, fifth
3. Appropriation Law No. 12 of 1981, as amended (Iraqi Official Gazette, issue 2817 of 16/2/1981)
4. Investment Law No. 13 of 2006, as amended, Iraqi Official Gazette, issue 4031 of 17/1/2007, article 10, fifth

Frequently asked questions

Related topics and articles

• 01Expropriation for public benefit and compensationExpropriation and compensation under Law 12 of 1981: an agreed taking, the Court of First Instance, the Valuation Board, and registration.
• 02Changing the land category from agricultural to residential or commercialChanging a property's kind or class in the register from agricultural to residential or commercial, under Land Registration Law 43/1971.
• 03What a landlord reviews before and after a lease in BaghdadWhat a Baghdad landlord reviews before and after a lease under Rent Law 87/1979 and the Civil Code.
• 04Sale or mortgage and the real-estate tax step in governorates not organised in a regionSale or mortgage and the real-estate tax step in governorates not organised in a region, under Law 162/1959 and Land Registration Law 43/1971.
• 05Ending co-ownership of shared propertyHow co-ownership of property ends under the Civil Code: agreed partition by registration, a First Instance claim, or sale if it cannot be divided.

Always check the text in force and its amendments in the official source.

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